Cromwell v. Boa Vida Hospital

Case: 22-60109 Document: 00516678766 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2023
No. 22-60109 Lyle W. Cayce
Clerk
William Jody Cromwell,
Plaintiff—Appellant,
versus
Boa Vida Hospital of Aberdeen, MS, L.L.C., doing business as
Monroe Regional Hospital,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:20-CV-174
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Per Curiam:*
William Jody Cromwell, a former anesthetist at Boa Vida Hospital
(Hospital), alleges that he was terminated solely due to his disabilities in
violation of § 504(a) of the Rehabilitation Act of 1973. 1 The district court
granted the Hospital’s motion for summary judgment. Because Cromwell
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
See 29 U.S.C. § 794(a).
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failed to show that the Hospital’s nondiscriminatory reasons for his
termination were merely pretextual, we affirm.
I
Cromwell has been an anesthetist since 1976 and began working for
the Hospital in 2014. He has multiple disabilities. First, he acknowledges
that he used a walker due to knee pain while working at the Hospital. Second,
he has hearing loss and stated that he wears hearing aids.
At the Hospital, Nancy Williams managed the operating room.
Although four physicians used the operating room, most of the surgeries and
the most complex surgeries were performed by the chief of surgery, Dr.
Woodrow Brand. In late 2015, Williams told Chris Chandler, the Hospital’s
administrator, about Cromwell’s mobility struggles. Before the end of 2015,
Dr. Brand also brought concerns regarding Cromwell’s limited mobility to
Chandler.
Chandler testified that Dr. Brand, Williams, and other members of the
surgery team raised concerns over the quality of Cromwell’s anesthesia
services. Both Dr. Brand and an operating room nurse, Dana Thompson,
testified that Cromwell appeared to have trouble hearing alarms going off
during surgery. Thompson testified that when this happened, she would
check on the patients to make sure they were safe. Williams testified that she
received questions from patients and their families about Cromwell’s
inability to hear. Cromwell admits that nurses questioned him about alarms
going off, but he claims he was ignoring false alarms.
Chandler testified that Dr. Brand told him three or four times that
Cromwell had provided patients with insufficient anesthesia. Further, Dr.
Brand, Williams, and Thompson all testified that intubation seemed more
difficult for Cromwell than for others in his position.
2
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In November 2017, Cromwell had difficulty intubating a patient.
According to Dr. Brand, Cromwell tried to intubate the patient multiple
times without success, which caused significant bleeding and endangered the
patient. Cromwell testified that the patient had undergone more than twenty
surgeries on her face, which made her difficult to intubate. Dr. Brand
testified that Cromwell did not discuss the second intubation attempt with
him, which was symptomatic of Cromwell’s inability to communicate
effectively. Williams and Thompson testified that before Dr. Brand could
speak to the patient’s family about what had occurred, Cromwell spoke to
the family, even though the conversation should have been reserved for the
treating physician.
Chandler testified that when he heard what had occurred, he launched
an investigation into the incident and sought information from the surgery
team. Chandler testified that he concluded that Cromwell’s intubation
difficulty was a concern and that Cromwell had overstepped his role in his
conversation with the patient’s family. Cromwell admitted that he had
difficulty intubating the patient, he spoke with the family of the patient who
was difficult to intubate, and there was an investigation into the
circumstances surrounding the difficult intubation. However, he did not
admit to having done anything wrong.
Chandler testified that, after the investigation, he contacted Dr.
Kimjot Singh, the Hospital’s owner, who had ultimate authority in
employment decisions. Dr. Singh had never met Cromwell. Chandler told
Dr. Singh that, over time, the quality of Cromwell’s job performance had
deteriorated to the point of potential liability. Chandler recommended
terminating Cromwell. Before terminating Cromwell, Dr. Singh contacted
Dr. Brand, who expressed patient safety concerns regarding Cromwell’s job
performance. In January 2018, Chandler informed Cromwell that his
contract was being terminated. Chandler explained to Cromwell that there
3
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needed to be “a change in the anesthesia department.” Cromwell testified
that Chandler told him that Williams and Dr. Brand were the individuals who
wanted the change.
Cromwell contends that he was fired not because of poor job
performance, but rather, because of his disabilities. In support of this claim,
he points to the two statements regarding his disabilities that were made by
Dr. Brand and Williams. Further, to negate the testimony of Dr. Brand and
Williams, five witnesses testified that they did not have any issues with
Cromwell’s job performance.
The district court granted the Hospital’s motion for summary
judgment, concluding that Cromwell failed to prove a prima facie case of
employment discrimination or, in the alternative, that Cromwell failed to
show that the Hospital’s justification for his termination was pretextual.
Cromwell timely appealed. This court has jurisdiction under 28 U.S.C.
§ 1291.
II
Cromwell argues that the district court erred in dismissing his claim
for discrimination under the Rehabilitation Act. “The Rehabilitation Act
‘prohibits discrimination on the basis of disability by recipients of federal
funds.’” 2 Where a plaintiff relies on circumstantial evidence in support of a
discrimination claim under the Rehabilitation Act, as is the case here, the
2
Cohen v. Univ. of Tex. Health Sci. Ctr., 557 F. App’x 273, 277 (5th Cir. 2014) (per
curiam) (unpublished) (quoting E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 614
n.5 (5th Cir. 2009)).
4
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claim is analyzed at summary judgment under the McDonnell Douglas 3
burden-shifting framework. 4
Under this framework, a plaintiff must first establish a prima facie case
of discrimination. “To establish a prima facie case of discrimination under
the Rehabilitation Act, ‘a plaintiff must prove that (1) she is an “individual
with a disability”; (2) who is “otherwise qualified”; (3) who worked for a
“program or activity receiving Federal financial assistance”; and (4) that she
was discriminated against “solely by reason of her or his disability.”’” 5
If the plaintiff establishes a prima facie case, “the burden shifts to the
defendant to ‘articulate some legitimate nondiscriminatory reason’ for its
actions.” 6 To satisfy this burden, the defendant need only produce “any
evidence ‘which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action. . . .’” 7
“If the defendant meets his burden . . . , then the burden shifts back to
the plaintiff to show that the nondiscriminatory justification was mere pretext
for discrimination . . . .” 8 A plaintiff may demonstrate pretext “by showing
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
4
See Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 585 (5th Cir. 2021) (citing Cohen,
557 F. App’x at 277).
5
Id. at 586 (quoting Hileman v. City of Dall., 115 F.3d 352, 353 (5th Cir. 1997)
(quoting 29 U.S.C. § 794(a))).
6
Cohen, 557 F. App’x at 278 (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995)).
7
Daigle, 70 F.3d at 396 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (“This
burden is one of production, not persuasion; it ‘can involve no credibility assessment.’”
(quoting St. Mary’s Honor Ctr., 509 U.S. at 509)).
8
Cohen, 557 F. App’x at 278 (citing Seaman v. CSPH, Inc., 179 F.3d 297, 300-01
(5th Cir. 1999)).
5
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that the employer’s proffered explanation is unworthy of credence.” 9 “An
explanation is false or unworthy of credence if it is not the real reason for the
adverse employment action.” 10
A district court’s grant of summary judgment is reviewed de novo. 11
“Summary judgment is appropriate ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law’” 12 and not appropriate if “a reasonable jury could return
a verdict for the non-moving party.” 13 We view the evidence in the light most
favorable to the non-movant. 14 “However, the non-movant must go beyond
the pleadings and present specific facts indicating a genuine issue for trial in
order to avoid summary judgment.” 15 “[T]his court typically will not
consider evidence or arguments that were not presented to the district court
for its consideration in ruling on the motion.” 16
9
Reeves, 530 U.S. at 143 (citation omitted).
10
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)).
11
See Feist v. La., Dep’t of Justice, Off. of the Att’y Gen., 730 F.3d 450, 452 (5th Cir.
2013) (citation omitted).
12
Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013)
(quoting Fed. R. Civ. P. 56(a)).
13
Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276
(5th Cir. 2014) (quoting Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.
2000)).
14
Feist, 730 F.3d at 452 (citation omitted).
15
Bluebonnet Hotel Ventures, 754 F.3d at 276 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986)).
16
Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (internal quotation marks and
citations omitted); see also Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir.
2018) (“When evidence exists in the summary judgment record but the nonmovant fails
even to refer to it in the response to the motion for summary judgment, that evidence is not
6
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We assume—but do not decide—that Cromwell has established a
prima facie case of discrimination under the Rehabilitation Act. 17 Pursuant
to the second step of the McDonnell Douglas framework, the Hospital has
asserted its “legitimate, non-discriminatory reason[s]” 18 for terminating
Cromwell’s employment, which were Cromwell improperly dosing patients,
ignoring alarms, struggling with intubation, and ineffectively
communicating. We therefore consider whether Cromwell can show that the
Hospital’s purported reasons were pretextual such that a reasonable jury
could conclude that his termination was due to his disabilities. The district
court concluded that Cromwell failed to show pretext, and we similarly
conclude that none of the evidence upon which Cromwell relies creates an
issue of fact as to the Hospital’s articulated reasons for terminating his
employment.
Although Cromwell denies that he had performance problems, merely
disputing the Hospital’s assessment of his performance does not create an
issue of fact because the issue at the pretext stage is whether the reason for
termination was the real reason for termination, not whether the reason was
correct. 19 Moreover, Cromwell admits to many of the underlying events
upon which the Hospital claims it based its termination decision, including
properly before the district court.” (quoting Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.
2003))).
17
See Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 582 (5th Cir. 2021); Cohen v.
Univ. of Tex. Health Sci. Ctr., 557 F. App’x 273, 278 (5th Cir. 2014) (per curiam)
(unpublished).
18
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).
19
See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (citing
Evans v. City of Hous., 246 F.3d 344, 355 (5th Cir. 2001)); see also Ogden v. Brennan, 657 F.
App’x 232, 236 (5th Cir. 2016) (per curiam) (unpublished) (citing Sandstad, 309 F.3d at
899).
7
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ignoring alarms, having difficulty intubating a patient, and speaking with the
family of the patient who was difficult to intubate. Additionally, he admits
that Hospital employees investigated the November 2017 incident and asked
him about his communication with the patient’s family. That the Hospital
was sufficiently concerned with the event that it conducted an investigation
weighs against a finding of pretext. Finally, the fact that the hospital received
no written complaints about Cromwell does not undermine the deficiencies
in his performance observed directly by hospital employees, and the district
court correctly stated that Cromwell’s testimony that some employees did
not have a problem with his work “did not negate the testimony of those that
did.”
To connect his termination to his disabilities, Cromwell provides
evidence of disability-related comments made by Dr. Brand and Williams.
Dr. Brand testified regarding his conversations with Chandler: “Really, as
best I can recall, the first conversations were more about just [Cromwell’s]
walking and the difficulty hearing and the perception. It was just about the
perception that the patients would have. . . . [I]nitially it was pretty, you
know, limited to just those concerns and how can we make it better.”
Cromwell admits in his reply brief that these comments occurred two years
prior to his termination. Thus, this comment is insufficient to show
pretext. 20 Similarly, that Williams described Cromwell’s admitted disability
20
See, e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001)
(“Where comments are vague and remote in time they are insufficient to establish
discrimination.” (internal brackets, internal quotation marks, and citation omitted));
Nguyen v. Univ. of Tex. Sch. of L., 542 F. App’x 320, 325 (5th Cir. 2013) (per curiam)
(unpublished) (finding statements made over a year before discharge to be too remote to
raise a fact issue).
8
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to Chandler does not show pretext, especially where the conversation
occurred multiple years prior to Cromwell’s termination. 21
Additionally, the Hospital knew of Cromwell’s disabilities by 2015 but
did not terminate his employment until early 2018. The timing of his
termination does not indicate pretext because (1) for multiple years, the
Hospital accommodated his disabilities and (2) the termination occurred two
months after the November 2017 incident. 22
On appeal, Cromwell also argues that there is evidence of pretext
because Dr. Singh did not mention the November 2017 incident explicitly in
his deposition and because Williams and Dr. Brand are “interested
witnesses.” However, he did not raise these arguments for pretext in the
district court. We therefore do not consider them here. 23
Considered individually and collectively, Cromwell’s evidence
properly before this court does not show that the Hospital’s articulated
nondiscriminatory reasons for Cromwell’s termination were merely
pretextual. Accordingly, we hold that the district court did not err in granting
the Hospital’s motion for summary judgment and dismissing Cromwell’s
claims under the Rehabilitation Act.
21
See Wallace, 271 F.3d at 222; Nguyen, 542 F. App’x at 325.
22
See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015)
(“Timing standing alone is not sufficient absent other evidence of pretext.” (quoting Boyd
v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir. 1998))); Rogers v. Bromac Title Servs.,
L.L.C., 755 F.3d 347, 354 (5th Cir. 2014) (finding possible inference of pretext due to
temporal proximity of protected conduct negated by even greater temporal proximity to
inappropriate, nonprotected conduct).
23
See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).
9
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* * *
The judgment of the district court is AFFIRMED.
10